Dunderdale v. Grymes

16 How. Pr. 195 | N.Y. Sup. Ct. | 1868

Emott, Justice.

It is not necessary in these cases to determine whether as the Code stood before the revision of 1857, it was ever allowable to join the husband as a co-plaintiff with the wife in an action relating to her separate property, or whether the objection to such misjoinder could be taken by demurrer. There is great force in the views expressed by Judge Habéis, on both these points, in Bronson agt. Gifford, (8 How. P. R. 395.) But these cases are both suits upon demands or causes of action which belong to the husband. In one case, the suit is brought upon an agreement with the wife to pay for board in a boarding-house kept by her. ¡Notwithstanding the allegation that this claim is her separate property, I suppose there can be no doubt upon the facts stated in the complaint, that the husband is the owner of the demand, and entitled to the recovery. The other suit is for a trespass committed by intruding into lands of which the wife was in occupation, and by ejecting her. There is no allegation that these lands were hers, still less, that they were her separate estate. The injury in the view of the law, was to the husband’s rights, and the damages to be recovered belong to him.

The question then is, whether husband and wife can sue together to recover debts due him or damages incurred by or inflicted on him ? There can be but one answer to this question, and I cannot doubt that this answer can be given on a demurrer. There are cases which hold that where one of several plaintiffs appears to have no interest in a cause of action upon which the others may properly maintain the suit without him, the Code does not permit a demurrer for the misjoinder. But husband and wife cannot be regarded or treated as two several plaintiffs. When a suit is brought by them together, the relation between them is not the same as that which exists between two. ordinary eo-plaintiffs. The best, if not the only sufficient-reason for the decisions I have just referred to, is that to sustain such demurrers would nullify the provisions of the Code, authorizing the court at the trial to give such judgment among various parties, for some and against others, as substantial justice requires. This is a beneficial provision, enabling us to dispose of such difficulties more satisfactorily in the end, than if we drove that portion of the plaintiffs who were rightfully before us out of court, because they were accompanied by others who did not belong there. When the cause is tried, we can render a judgment in favor of the former, and another against the latter. And thus, while no injustice is done, nor any delay of justice occasioned, no legal principle is violated. But-such a remedy cannot be applied in cases where husband and wife are the plaintiffs. It is not easy to see how a judgment could be given in favor of the husband and against the wife, in such cases as the present. At all events such a judgmeat would be of no avail to indemnify a defendant for the costs of a suit improperly brought, and, therefore, justly defended. These suits must either be sustained altogether, or amended as to their entire frame, or dismissed altogether. And if the objections presented by the demurrers must at the trial be fatal to the suits, because from their nature they are incapable of several judgments, it is no hardship to the plaintiffs to sustain a demurrer.

There must he judgment for the defendant in both cases, with leave to amend on the usual terms.